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Proposed Common Cause Language on Ethics Commission Amendment

In June 2009 the Rhode Island Supreme Court ruled in favor of former Senate President William Irons in his suit against the Rhode Island Ethics Commission, upholding the dismissal of the Commissions complaint by the Superior Court. In issuing this opinion, the Court ruled that the Ethics Amendment, in Article III, Section 8, passed by the voters in 1986 did not amount to a repeal of the legislative immunity provided by Speech in Debate Clause in Article VI, Section 5 of the Rhode Island Constitution. What this means is that the Speech in Debate Clause, which provides immunity for members of the General Assembly from prosecution, or civil suits, based on their core legislative acts applies to investigations and prosecutions by the Ethics Commission for alleged violations of the Ethics Code. Core legislative acts include proposing, passing, or voting upon a particular piece of legislation. Therefore, while the Code of Ethics and the Ethics Commissions jurisdiction apply to state legislators generally, they cannot be applied to the core legislative acts of state legislators. In its opinion, the majority of the Court said that, Unquestionably, this [speech in debate] right could be modified (or even obviated) by a sufficiently explicit constitutional amendmentbut we perceive no such explicitness in the language of the 1986 Ethics Amendment. We propose the following language to modify both the Ethics Amendment and the Speech in Debate Clause to effect an explicit limited partial repeal of the Speech in Debate Clause to give the Ethics Commission, and only the Ethics Commission, the authority to apply the Ethics Code to core legislative acts and to permit the Commission to investigate and prosecute state legislators for Code violations occurring during the conduct of such core legislative acts. Our language would modify both the Ethics Amendment, Article III, Section 8, and the Speech in Debate Clause in Article VI, Section 5. In the Ethics Amendment, language is added to make explicit that the Ethics Commission has jurisdiction to hear and decide all potential violations of the Code of Ethics notwithstanding the protections of the Speech in Debate Clause. The Speech in Debate Clause is amended to permit the Ethics Commission, and only the Ethics Commission, to question a state legislators core legislative acts under the authority of Article III, Section 8. The intent of our language is a limited repeal of the Speech in Debate Clause. We do not wish to strip members of the General Assembly of their protections from criminal prosecution or civil action for their core legislative acts. Nor do we intend to provide more power to the Ethics Commission than they have historically exercised from the period of 1986 to 2008. We seek to put this language on the ballot in 2014 for the voters of the State of Rhode Island to decide. While we respect the majoritys opinion that there was not a sufficiently explicit repeal of the Speech in Debate Clause by the Ethics Amendment, we continue to believe that was an oversight by the Committee on Ethics of the 1986 Constitutional Convention. We hope to reaffirm the work of that Committee with a vote in 2014.

ARTICLE III OF QUALIFICATION FOR OFFICE Section 8. Ethics Commission Code of Ethics Jurisdiction. The general assembly shall establish an independent non- partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflict of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials of state and local government, of boards, commissions and agencies, shall be subject to the code of ethics and the jurisdiction of the ethics commission. The ethics commission shall have the jurisdiction and authority to investigate and adjudicate all alleged violations of the code of ethics, including acts otherwise protected by Article VI, Section 5, and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment. ARTICLE VI OF THE LEGISLATIVE POWER Section 5. Immunities of General Assembly members. The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place, except by the Ethics Commission as set forth in Article III, section 8 of this Constitution.